Month: November 2015

For the past eleven years, since the coup and overthrow of the elected government in 2004, Haiti has been deemed so dysfunctional, so failed, a state, that the international community has decided to run it directly. UN troops patrol its streets. Nongovernmental organizations oversee most aspects of social provision. Donors provide the finances. The resources and reach of the government is limited. There were elections in 2010/11 and there will be a runoff presidential election at the end of December – both of these took place under this limited-government, maximum-international-community, regime (which could be called ‘donor rule’ and which I have called ‘Haiti’s New Dictatorship’). The 2010/11 elections were politicized and unfair. They banned the most popular party, Fanmi Lavalas, from running. The first round of the current elections have been characterized by massive fraud, and Haitians know it. They have no confidence in the elections. They are protesting, and their protests are met with tear gas from police – one of the few things that the government is allowed to do (though this important duty is often shared with the UN).

Some observers may throw up their hands and say, how could you expect credible elections, Haiti is a poor, dysfunctional country. But Haiti has had fair elections – they occurred in 1995 and in 2000, before the UN took over. The international community, which has been governing Haiti directly since 2004, is the body that is incapable of running a fair election. As in Haiti, so in Afghanistan, where the 2014 presidential elections were won by Ashraf Ghani, after which the international community imposed a power-sharing arrangement with the loser, Abdallah Abdallah. An extraordinary agreement was brokered as part of this, that the exact vote totals would not be made public.

The first-world version of what is happening in Haiti and Afghanistan is what Tariq Ali calls the Extreme Centre, in which political parties are indistinguishable from one another on most important issues, and alternate in power. Under such conditions, with major issues out of contention, fair elections are acceptable to elites.

The rich Western countries have their own problems with elections, of course. The most famous case was the US presidential election of 2000, with voting machines and ballots that were made incomprehensible for voters, supreme courts intervening to prevent recounts of votes, and other stranger-than-fiction happenings. Electoral cheating in Canada in 2006 and 2011 was relatively minor by comparison. When Jeremy Corbyn became the Labour leader in the UK, a general there told the media casually that there might be a military coup if he ever won a general election.

If electorates could be relied upon to do the right thing, then there would be no need for cheating by those in power. Many tyrants have mastered the art of elections theater: Egypt’s President Sisi managed to win the 2014 presidential election with an astounding 96.91% of the vote. Syria’s President Assad held elections in 2014 in a country where most people were running for their lives, and in which his army and its opponents were slaughtering large numbers of voters. He won a remarkable 88.7% of the vote. Rwanda’s Paul Kagame, who recently got term limits lifted so that he (and he alone) can keep running for president, won the 2010 election with 93%. Kagame’s neighbours, Joseph Kabila in the DRC and Yoweri Museveni in Uganda, use some of the same techniques, including arresting opponents and terrorizing the press, but they have had much more modest success (Museveni only won the 2011 election with 68%, Kabila won the 2012 election with a mere 48.95%).

Some countries don’t bother with the pretense. Two examples: Israel doesn’t pretend to give the Palestinians of the West Bank and Gaza, whose lives it controls to the last detail, any say in how they are occupied. Saudi Arabia is an absolute monarchy, one that also schedules beheadings and crucifixions of youths like Mohammed Nimr, who is still very much in danger. The Western governments that watch keenly and comment severely on the fairness of elections in countries like Ecuador and Bolivia do happy, multibillion-dollar business with apartheid Israel and the Saudi Kingdom.

But the pretense clearly does matter. Very few countries get the kind of immunity that Israel or Saudi Arabia do. Despite the openness of the fraud and the incredibility of the results, most dictatorships do hold electoral exercises. In most cases, the appearance of electoral legitimacy is important enough to keep up elections theater, even if electorates are not powerful enough in many places to actually impose their will through elections.

On the other hand, there are still fair elections, ones where the electorate actually has a say. One example: Narendra Modi’s BJP were surprised to lose the recent elections in Bihar, in which the electorate gave their verdict on the BJP’s unsubstantiated claims of development and their anti-secular, divisive program. Another example: while the wealthiest and most powerful nation in human history continues to struggle with incomprehensible combinations of paper ballots and voting machines, Venezuela has managed to create a voting system that is very difficult to defraud (and I believe that at least at one time its voting machines were made in the USA – at least the machines contributed to fair elections somewhere).

Even these real elections pose dangers, because the belief in electoral legitimacy is not shared by all contestants. The BJP’s desire to make India a Hindu nation conflicts with India’s democratic constitution. If the Venezuelan opposition comes to power in December, it is unlikely that it will respect the constitution or maintain the integrity of the electoral system.

Elections matter. If they didn’t, there wouldn’t be so much effort put into manipulating them, limiting options available to the electorate, and preventing them from being free. Nor would so many tyrants still feel they need to go through the motions of demonstrating that they have elections, however unfree. But a world of free, fair, meaningful elections with choices for voters is still a distant utopia.

And even where there are relatively fair elections, good electoral systems are always at risk. Electoral systems are not technical matters run by disinterested parties. They are political, which is why even the most disinterested-seeming parties, like the international community ruling Haiti, can’t seem to get them right. To get them right, the international community would have to value Haitian democracy more highly than its own continued rule, and believe that Haitians had the right, and the ability, to make their own decisions about their government. That kind of democratic feeling is surprisingly rare, especially among those who have grown accustomed to ruling, unelected.

First published on TeleSUR English: http://www.telesurtv.net/english/opinion/Elections-Theater-20151126-0008.html

At the beginning of October, Spain’s supreme court dismissed the case known to Rwanda watchers as the Merelles (2008) indictments. Judge Andreu Merelles had charged forty Rwandan military officials of crimes against humanity, war crimes, terrorism, and genocide, and issued warrants for their arrest. The indictment was launched because some Spanish citizens had been killed in the Rwandan civil war. But it expanded to include Rwandan and Congolese victims of the armed forces of Paul Kagame, the winner of the 1990 civil war and the man who may have just become Rwanda’s President-for-life (more on that below).

The indictments had always excluded Kagame because of Kagame’s presidential immunity. Kagame went about protecting himself in two ways, both of which eventually succeeded. First, Kagame may have reasoned, if the president is immune to prosecution, why not stay president forever, making whatever constitutional changes necessary to do so? Second, the indictments themselves were challenged and the doctrine underlying them, ultimately defeated.

The doctrine in question was called ‘universal jurisdiction’. The idea was that a crimes like genocide and crimes against humanity were not crimes that stopped at national borders. As a result, any country could charge and try those accused of such crimes, even if they were from another country. Universal jurisdiction is a liberal doctrine, analogous to the selectively applied Responsibility to Protect (R2P). Universal jursidiction is not as prone to abuse as R2P mainly because it is not as asymmetric as R2P: any country with a judiciary can hold a trial and issue arrest warrants, but only two or three countries in the world have the military might to send military forces to other countries, whether on the pretense of protecting people or some other. For non-superpowers, for smaller countries, there was only the threat of the law.

Spain was just such a small country whose judges took up the law against human rights abusers in other countries. Under the universal jurisdiction doctrine it attempted to try Chile’s dictator Augusto Pinochet, Guatemalan military officers, and Argentinian military officers. But the Spanish judges didn’t just chase fallen dictators from smaller countries. They also pursued former US Secretary of State Henry Kissinger, US soldiers for crimes in Iraq, Chinese politicians for crimes in Tibet, and Israeli generals for massacres of Palestinians.

By going after the big fish and people currently in power, the Spanish judges set alarm bells ringing. Israel, which famously used the doctrine of universal jursidiction in its trial of Eichmann 1961, got the investigation against its officers stopped. Kissinger argued that the doctrine would degenerate into show trials against political opponents.

Last year, Spain’s legislature reduced the applicability of universal jurisdiction. An NYT article (Feb 10/14, “Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally”) suggests that China was the last straw. But the doctrine was targeted earlier. And the last straw was not China, but the arrest in June of one of Rwandan ruler Kagame’s intelligence officers, Karenzi Karake, in London, on a European arrest warrant filed based on Merelles’s 2008 indictments. Karake was released in August through the strenuous efforts of the Blair family (Tony Blair is a friend and advisor to Kagame, and Cherie Blair was Karake’s lawyer). Less than two months later, Merelles’s indictments were dismissed in the Spanish Supreme Court.

Kagame and his men could breathe a little easier. As for Kagame himself, lest any other countries get any universal jurisdiction ideas, the Rwandan parliament voted to allow Kagame to extend his tenure beyond the end of his term limits in 2017. Maybe he’ll stay on until 2034. The parliament didn’t change the law for everyone: just for Kagame.

Is anything left of the indictments? For 29 of the 40 indicted, there remains a possibility of prosecution should they enter Spanish territory.

But the doctrine on which it is based, universal jurisdiction, has been eroded. Journalist Judi Rever, describing the case in the Digital Journal, used the term “gutted”. After this decision, the international legal arena has become a bit safer for war criminals.

Partial justice and victor’s justice will still take place through these international tribunals. If you are a dictator, if you lose a war, if you end up on the wrong side of Western weapons – you should continue to fear trial and execution in international courts.

But if you are perpetrating crimes against Asians or Africans, in places like Rwanda or the DRC, or in Palestine or Afghanistan or Iraq, under the protection of a major power like the US – well then, rest easy. The law will not get you.

First published TeleSUR English: http://www.telesurtv.net/english/opinion/The-End-of-Universal-Jurisdiction-20151113-0010.html